The Prosecution of Inauguration-Day Protesters Is a Threat to Dissent

The government keeps expanding its efforts to prosecute J20 protesters, and this should alarm all of us.

October 20, 2017

Activists and journalists get hit by a stun grenade during the J20 protest against Donald Trump in Washington, DC. (Reuters / Adrees Latif)

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Late next month, the first mass trial will be held for some of the roughly 200 people facing years—or even decades—in prison after being arrested during an anti-capitalist, anti-fascist protest that took place on the day of Donald Trump’s inauguration. The “J20” cases, as they are known, offer a glimpse at the treatment of dissent in this country, and the story they tell is one of overreach and criminalization. Defense lawyers have described the government’s approach as “unprecedented,” its indictments as “littered with fatal irremediable defects.” Sam Menefee-Libey of the DC Legal Posse, a group of activists who provide support to the defendants, was more blunt, criticizing the cases as “blatant political prosecutions” designed to “chill resistance.”

The story of the J20 protesters should frighten anyone concerned about the future of both free assembly and dissent in the United States. The charges—which include felony rioting, inciting or urging others to riot, conspiracy to riot, and property destruction—all stem from the same mass arrest, during which police indiscriminately swept up protesters, journalists, and legal observers. What makes the charges all the more troubling is that prosecutors then failed to allege that the bulk of defendants did anything specifically unlawful; rather, merely being at the protest was a crime.

A case in point: The prosecution charged all of the defendants (at one point numbering 214) with breaking the same windows. Prosecutors, of course, know that 200 people cannot break the same windows. But the logic of the case dictates that the defendants’ mere presence at a protest during which property damage occurred makes them guilty.

Meanwhile, compounding the concerns raised by the J20 prosecution are a series of parallel legal skirmishes that have been playing out around several warrants for information issued by the Department of Justice (DoJ). Lawyers and activists have charged that these warrants—which are part of the government’s attempt to prove that the protest was the result of planned riot—are dangerously overbroad and, as such, pose serious First Amendment challenges. Particularly in their initial forms, they have argued, the warrants could have resulted in a dragnet-style collection of electronic information related to political speech and organizing.

In the first of these warrants, the DoJ requested that the web-host provider DreamHost share all of the information associated with its customer DisruptJ20.org. DisruptJ20.org served as the information hub for protests during the inauguration, but the government has since sought to portray it as the organizer of a premeditated riot. To comply with the DoJ’s initial warrant, DreamHost argued, it would have needed to turn over the 1.3 million IP addresses of those who visited DisruptJ20.org—a move that would have amounted, essentially, to a list of individuals politically opposed to Trump.

While the DoJ subsequently amended its warrant to exclude the demand for IP addresses—thanks, largely, to widespread outrage—it continued to alarm activists and legal experts with its ongoing quest for a broad range of information from the site, including e-mails from individuals, not suspected of any crime, who wrote to the site inquiring about protest activities or offering lodging for out-of-town protesters. Civil libertarians hoped the warrant would be thrown out, but Chief Judge Robert Morin of DC Superior Court declined to do so. Instead, he ruled that DreamHost was to redact the identities of individuals in order to safeguard their First Amendment rights; if, after reviewing the redacted information, the DoJ finds evidence of a crime, the court will un-redact the information.

Similarly, the DoJ has issued a warrant against Facebook that would have required the company to turn over the names of all 6,000 people who “liked” the DisruptJ20 page. At a hearing on October 13, the DoJ dropped this demand, although it maintains that it still needs to obtain information on “likes” in certain cases, as “liking” a specific post, such as “how to dress in black bloc for the riot,” while not a crime in and of itself, could be “probative of criminal intent.” In addition to asking for the information associated with the DisruptJ20 Facebook page, the DoJ is also demanding that Facebook turn over information from the personal accounts of two organizers who have not been charged with any crime.

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“These cases are important because here we are at the beginning of the administration of a president many of us [fear will be] very repressive and intolerant of dissent,” says Paul Alan Levy, of the Public Citizen Litigation Group, which has intervened on behalf of unnamed Facebook and DisruptJ20.org users seeking to protect their right to anonymous speech in both cases. “How Chief Judge Morin treats their fishing expedition could set either a very good precedent or a very bad precedent about how they will use the criminal-justice system going forward.”

So what does all this mean? For protest? For dissent?

To understand how all the pieces fit together—the arrests and the prosecutions and the warrants—it helps to rewind the clock to January 20, when more than 200 protesters, journalists, and legal observers were arrested as they marched through the streets of the capital. The march was one of many actions that took place that day, part of an outpouring of outrage that included a permitted march and blockades of inauguration entrances. What made this protest distinctive was that it was a black-bloc action, powered by anarchists, anti-capitalists, and anti-fascists, among others.

Few people dispute that property destruction took place during the march. Some individuals smashed windows, including those of a Bank of America branch and a limousine; prosecutors allege that there was more than $100,000 in property damage and that six police officers received minor injuries. Where things get thorny is that many of the people who have been charged did not commit property damage or violence but have been deemed guilty by their mere presence at the protest.

The problems began during the arrests themselves—arrests deemed so troubling that the ACLU has brought a lawsuit against the Metropolitan Police Department (MPD) accusing its members of using excessive force, making unconstitutional arrests, and more.

Among the controversial practices police engaged in that day, lawyers and observers say, was a tactic called “kettling.” Kettling is a form of indiscriminate mass arrest, wherein police block off a given area and arrest everyone within it. To be lawful, an arrest requires probable cause based on individual suspicion. Yet, inevitably, this heavy-handed tactic often sweeps up other protesters and bystanders whose only offense was their physical proximity to the alleged crime. Indeed, a report on the inauguration by the DC Office of Police Complaints noted that “it seems that proximity to the area where property damage occurred was a primary factor” in the arrests.

Arrests made through kettling are problematic not only because of their indiscriminate nature but also because they ultimately deprive individuals of their right to free assembly. As the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association explained in a 2016 statement on the policing of protests in the United States: “Acts of violence by a few do not make an entire protest violent; nor do they strip other individuals of their right to continue the assembly.”

In the case of the January 20 protests, the use of kettling was a surprise, as it broke with standard police protocol in DC. After facing criticism for wrongfully arresting individuals during IMF/World Bank protests in 2002, DC passed legislation to protect free assembly. The use of kettling during Trump’s inauguration constitutes the first mass arrest of protesters since these reforms.

A spokesperson for MPD declined to comment on the arrests because of pending litigation, but did offer a statement saying, “Each year, the men and women of MPD protect the rights and ensure the safety of thousands of First Amendment assemblies, demonstrations and protests,” including during Trump’s inauguration. “Unfortunately,” the statement continued, “there was [a] group of individuals who chose to engage in criminal acts, destroying property and hurling projectiles, injuring at least six officers.” The statement concluded with a promise that “all instances of use of force by officers and allegations of misconduct will be fully investigated.”

The mass arrests gave birth to the next government overreach, mass “felony riot” charges against those arrested. Felony rioting carries a penalty of up to 10 years in prison and a $25,000 fine, and applies when the alleged riot results in more than $5,000 in property damage. This is opposed to misdemeanor rioting, which can get you only 180 days in jail.

Attorneys who have long represented protesters in DC report never having encounteredmass felony charges stemming from a protest before. Not the least of the reasons is that it’s difficult to produce enough evidence to sustain felony charges against dozens—or in this case, some 200—people. Yet, rather than backing down, prosecutors expanded the case by filing additional charges, and, in April, a grand jury returned a superseding indictment that added inciting or urging to riot and conspiracy to riot to the list of crimes. These new charges brought the number of felony counts up from one to eight and the amount of time defendants could face from 10 years to more than 70 years in prison.

In a sign of just how wide a net the government has cast, many of the defendants have not even been named as having committed specific acts in the indictment. Instead, actions are attributed to the amorphous “rioting defendants” or “individuals participating in the black bloc.”

Moreover, some of the actions recounted in the indictment—such as chanting, “Whose streets? Our streets!” or “Fuck capitalism!”—are hallmark elements of a political demonstration, yet prosecutors are claiming these acts are elements of a felony. As troubling, one of the superseding indictments “accuses the undifferentiated ‘Rioting Defendants’ of merely walking in certain directions, wearing certain clothing, observing law enforcement, and not dispersing,” according to a motion filed by defense counsel for some of the defendants.

The government’s overarching theory, then, seems to be one of guilt by association. Or that, as Assistant US Attorney Jennifer Kerkhoff asserted during a hearing about dismissing the charges, it is “the group that is the danger, the group that is criminal.” Thus one need not have committed an act of vandalism as an individual; just being present at the protest makes one guilty. (The DoJ declined to comment for this story, as the cases are currently pending.)

Among those swept up in this overbroad approach was a group of at least seven journalists who were covering the J20 protests. While prosecutors ultimately dismissed the felony rioting charges against the bulk of the journalists nearly as quickly as they were filed, two journalists remain in the crosshairs: Aaron Cantú, then a freelancer who has published with The Nation and The Intercept, and Alexei Wood, who livestreamed the event. In April a grand jury brought a superseding indictment of eight felony charges against both reporters along with the other defendants. They face as many as 70 years in prison, possibly more.

The indictment against Cantú deploys the same guilt-by-association approach that mars the entire case. Per prosecutors, Cantú moved in proximity to the march—something that would be necessary in order for him to do his job as a journalist. But prosecutors have additional evidence against Cantú: He wore the color black.

It is this nine-month chain of events that gives such a troubling twist to the warrants for information targeting both Facebook and DreamHost. In the case of the DreamHost warrant, the government claimed during an August hearing that it was only seeking evidence of planning a riot, such as a listserv discussion of “who was bringing crowbars to the riot.” But given the conduct of the government from the time of the arrest to the indictments, this was hardly reassuring. Moreover, while Chief Judge Morin has since placed some protective restraints on the information DOJ is allowed to collect, the fact that the underlying prosecution conflates political and criminal activity means that no amount of safeguards can alter the chilling nature of the search.

Indeed, as we’ve already begun to see, the problem with these types of political witch hunts is that, once begun, they continue to expand and grow based on their own twisted logic. The illegal mass arrests of protesters, journalists, and legal observers during the inauguration produced the unconstitutional prosecutions of around 200 defendants. Those unconstitutional prosecutions have, in turn, produced a chilling search request.

No one knows what will come next or how far this will go, but anyone who cares about freedom of association, assembly, or speech should be deeply troubled.

Chip GibbonsChip Gibbons is a journalist, as well as, policy and legislative counsel for Defending Rights & Dissent (views are his own). He has appeared as an expert on US constitutional law on Al Jazeera and is a contributor to The Henry Kissinger Files, forthcoming Verso. Follow him on twitter @ChipGibbons89.